Positive Obligations in the Field of Racial Discrimination – When is a court of law not enough or when is it too much?

Combatting racial discrimination has been a key objective of international human rights law since the adoption of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) in the 1960s. However, as societies evolve, as new treaties are adopted, and as there is a greater cross-pollinization among several protection systems, how should the law operate to combat this scourge, in present-days conditions?This is what I addressed in the PhD thesis I defended on the 1st of March 2019. I am pleased to share some of my reflections and invite the reader to a further dialogue via this post.

The term positive obligations in international human rights law refers generally to instances in which States are required to take measures beyond the traditional duty of abstention, according to a liberal idea of human rights. The issue of positive obligations in the context of the European Convention on Human Rights has been intensely debated in case law and scholarly works, such as the PhD thesis of Laurens Lavrysen (2016). Comparatively, in other protection systems, this issue has not been sufficiently researched, particularly in the field of equality and non-discrimination. Beyond cases, books, journal articles and so on, my PhD has offered a reflection on the limits of the law, particularly of judicial measures, to combat racial discrimination.

Limits of the law in combatting racial discrimination

When one speaks of positive obligations, frequently one may think of the obligation for states to investigate acts of hate speech, to uncover the racial motivation in violent acts and to address these violations, setting important deterrents to potential violators in the future. In the Americas, such a due diligence standard was applied by the Inter-American Commission on Human Rights (IACHR) in the case of Simone Diniz v. Brazil (2006). This case concerned a black applicant to a maid job rejected by the employer because of the colour of her skin. There, the Court applied this standard in order to confirm an obligation to prohibit acts of racial discrimination by private parties.

However, racial discrimination, as an issue that boils the hearts and minds of contemporary debates, cannot be addressed by judicial measures alone. It cuts across considerations on equal representation in government and in society, feelings towards certain minorities, politics and power, equal opportunities, to name a few. It has become clear throughout the centuries that race is a social construct, embedded with values, perceptions and fears of every society. This is particularly reinforced by current advanced research on genetics, particularly the sequencing of the human genome (2001), refuting any credible claim to racial superiority.

Furthermore, vulnerability is an unavoidable issue in this regard. Certain groups remain at the margins of any important decision-making process. As a result, the laws and practices thus produced, neutral at face-value, impose a disproportionate impact on certain categories of people, even in the absence of an intent of a public authority to commit racial discrimination. Hence, measures aimed at bringing marginalized groups to the center of the decision-making processes and at increasing their representation in important public and private positions are necessary components to the fight against racial discrimination.

An illustration of the limits of judicial measures combatting racial discrimination is the way in which the Committee on the Elimination of Racial Discrimination (CERD) deals with hate and discriminatory speech under General Recommendation No. 35 (2013). This committee breaks the traditional division in Article 4 ICERD, between freedom of expression and racial equality, by rejecting a zero-sum equation involving these two rights. Instead, it speaks of an obligation to promote racial equality through non-adjudicatory measures, in order to deal with hate speech. But one could go further than that and think that the combating of hate and discriminatory speech strives for efforts to create an enabling environment of tolerance for different views, including the views of the disadvantaged groups.

Moreover, temporary special measures (affirmative action), aimed at accelerating the equalization of racially marginalized groups, are expressly drafted as a State positive obligation under Article 2 ICERD. This obligation indicates a need for administrative measures in the fields of education, housing, work, etc. instead of merely ex post facto judicial measures.

All in all, insisting on the binary doing nothing (and thus not requiring positive obligations) or punishing discriminatory acts (via positive obligations to criminalize and punish acts of racial discrimination) has proven ineffective. Beyond a duty of non-interference, it can be said also that there is a duty of non-indifference for States, by recognizing real-life obstacles hindering marginalized groups to enjoy rights on equal footing.

So far, so beautiful…

Group-specific treaties, such as the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) contain a variegated set of positive obligations, e.g. promoting equality and addressing structural discrimination. Yet transposing these obligations to (the more mainstream) civil and political rights treaties is not an easy task. If one aims at obtaining a “binding judgment” from a supranational court (a holy grail of international law) regarding those obligations, it is necessary to convince the relevant judges that there is, according to present-time conditions, a certain positive obligation related to the objective sought. It is also required to convince them that such an obligation does not extrapolate the material scope of civil and political rights. Moreover, the relevant claim has to pass the tests of legality, suitability, necessity and proportionality. If the relevant proceedings lead to an extensive discussion on the margin of domestic appreciation, good luck, then! There are thus significant hurdles in obtaining such a judgment.

In some other cases, the entrenched liberal thinking in civil and political rights treaties may present obstacles to the relevant monitoring bodies in accepting some types of positive obligations. For instance, there are fears that the collection of disaggregated data – which is key in better addressing patterns of racial discrimination through public policies – may violate the right to privacy under Article 8 ECHR, particularly in the wake of General Data Protection Regulation (GDPR). These fears are in my view unfounded. For instance, disaggregated data is collected, analyzed and presented anonymously, not posing threats to privacy rights, i.a. as per the GDPR’s 26th considerandum. Moreover, there is still the need for a broader acceptance of concepts such as programmatic obligations, like those involved in affirmative action schemes, to increase the chances of success of claims of these schemes. Programmatic obligations imply mid or long-term goals the relevant fulfillment of which can nowadays be monitored by statistics or other similar means.

Indeed, these matters rely greatly on considerations of public policy, allocation of funds and decisions of democratically elected parliaments. At the same time, some contemporary ideas, such as the capability approach, may be of some help. Through this approach one can more easily understand that allocation of funds can have a rights-enabling component when certain individuals are unable to realize rights autonomously, instead of merely consisting of welfare provisions.

These are some obstacles to realizing the potential of positive obligations as well as some suggested ways of overcoming them. As the PhD sets out in detail, this is embedded in a much bigger conversation on the law’s role in combatting racism. Feel free to join the conversation by responding to the post.

Paulo Lugon Arantes is a researcher and consultant on UN human rights law and procedures. He holds an LL.M. from the University of Utrecht and a PhD at the Faculty of Law from the KU Leuven.

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